Titus Regional Medical Center v. Glenna Virginia RoachTitus Regional Medical Center v. Glenna Virginia Roach
Lori N. Chism, Attorney at Law, Mount Pleasant, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice MOSELEY.
This appeal calls on us to address an oft-debated, but seldom crystal clear issue regarding a governmental entity‘s immunity from suit. Glenna Virginia Roach (Roach) underwent surgery at Titus Regional Medical Center (Titus). After Roach‘s surgery, she was taken to a hospital room and placed in a hospital bed. In her suit, Roach alleged that the hospital staff failed to raise the bed‘s safety rails and left her unattended while still under the influence of anesthesia and that Titus failed to notify Roach‘s family that she had
Immunity and Standard of Review
Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the State or certain governmental units have been sued unless the State consents to the suit. Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004). In reviewing a trial court‘s ruling on a plea to the jurisdiction, we construe the pleadings in favor of the nonmovant and look to the nonmovant‘s intent. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We are not required to look solely to the pleadings when deciding a plea to the jurisdiction; we may consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Whether a trial court has subject-matter jurisdiction is a question of law which is subject to de novo review. Tex. Natural Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). Whether a pleader has alleged facts which affirmatively demonstrate a trial court‘s subject-matter jurisdiction is a question of law reviewed de novo. Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court‘s jurisdiction is also a question of law. Miranda, 133 S.W.3d at 225-26.
“Use” of Property
The applicable governmental immunity statute and the scope of waiver expressed therein has a “long and arduous history.” York, 871 S.W.2d at 177. No proper examination of the issue of interpretation and application of the governmental immunity statute would be complete without a review of several much-discussed Texas Supreme Court cases which deal with the issue. We begin that examination with a triumvirate of cases, spanning the period from 1975 to 1989, in each of which the Texas Supreme Court found the allega-
The “Outer Bounds” of Waiver of Governmental Immunity
The earliest of these three cases is Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.1975), in which the plaintiff claimed that the hospital negligently provided a hospital bed that possessed no safety rails; the plaintiff fell from the bed and was injured. The provision of the railless bed, the plaintiff claimed, was a use or condition of tangible personal property which waived immunity. The hospital raised governmental immunity in its motion for summary judgment, saying that the want of safety rails was a non-use of property, not a use of it; the trial court granted the hospital‘s motion for summary judgment on that basis. The Texas Supreme Court held that if the hospital were found to be negligent in failing to provide a bed without safety rails, it could not assert governmental immunity. Id. at 529.2
The second case frequently cited in discussions of the history of governmental immunity is Lowe v. Texas Tech University, 540 S.W.2d 297, 300 (Tex.1976). Lowe sued Texas Tech University, alleging that the school was responsible for an injury Lowe sustained while playing college football. Lowe claimed that his uniform included a knee brace (Lowe had suffered a prior injury, necessitating the brace); Lowe‘s suit alleged the coaching staff either failed to provide Lowe with the brace or required him to play without it. As a result, Lowe suffered a second, more serious, injury that precipitated the suit. The Texas Supreme Court found, “Both the standard and specially designed protective devices are integral parts of the football uniform, e.g., special taping or knee braces furnished a player with an injured knee are as much a part of his uniform as his helmet, or shoulder pads, or whatever.” Id. Based on that rationale, it was determined that the use of the football uniform (which included the knee brace) was use of tangible personal property, thus bringing about a waiver of immunity.
In the final one of the three cases, decided thirteen years later, the Texas Supreme Court found a waiver of governmental immunity when the governmental agency failed to provide a life preserver to a child (known to suffer seizures) who was taken swimming while under the care of a governmental entity and who then drowned. Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169 (Tex.1989). The Texas Supreme Court found “[a] life preserver was just as much a part of Robinson‘s swimming attire as the knee brace was part of the uniform in Lowe.” Id. at 171. Thus, the life preserver, as part of the swimsuit, was deemed to be the use of tangible personal property as contemplated in the statute; the allegation of liability because of the governmental unit‘s failure to provide a life preserver was not barred by the claim of immunity. Id.
Seven years after the holding in Robinson, the Texas Supreme Court described limitations on the holdings in Lowe and Robinson: “These cases represent perhaps the outer bounds of what we have defined as use of tangible personal property.” Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex.1996). Moreover, “[t]he precedential value of these cases is therefore limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safe-
The Instant Case
Titus relies on Kerrville‘s description of a non-use of tangible property; Titus maintains that in this case, the allegation that the hospital staff failed to raise the safety rails equates to an allegation that the hospital did not use the safety rails. Going further, Titus concludes that Roach‘s allegation is based on a non-use of property, rather than a use of it. Just as the Kerrville hospital did not waive its immunity by failing to use an injectable format of medication, reasons Titus, it did not waive immunity by a failure to use the rails.
Roach in turn cites us to Hampton v. University of Texas, 6 S.W.3d 627 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The plaintiffs in Hampton, like Roach, claimed the patient fell from his hospital bed because the hospital did not engage the bed‘s safety rails. Interpreting the petition‘s allegations in the light most favorable to the plaintiffs, the Houston First Court of Appeals found the petition did indeed allege an injury caused by a condition or use of tangible property; therefore, the hospital‘s governmental immunity had been waived. Id. at 630. Hampton claimed that the hospital‘s failure to implement the safety features was a misuse of tangible property; according to the opinion, the petition also alleged negligence in the hospital‘s providing a defective bed, i.e., one that lacked essential safety features—raised safety rails. Id. The court of appeals construed Hampton‘s pleadings to allege that the hospital, not Hampton, retained control over the bed‘s safety features, before and during the time Hampton used the bed. Id. at 631. The court discussed Overton, Lowe, and Robinson and found “no significant difference in this case and those in which governmental units provided personal property lacking some integral safety component.” Id.3 The court pointed out the hospital supplied Hampton with a bed with attached safety equipment, which did not function until it was activated by the hospital. The court rejected the hospital‘s defense that failure to activate the safety equipment in question was a non-use of the property. This is the same argument Titus makes in this case.
Obviously, the circumstances in Hampton were quite similar to those in Roach‘s case. It is difficult for us to contemplate how, when a patient is placed in a bed as part of the hospital‘s treatment of that patient, the bed is not being used in the treatment. The rails are quite differ-
While the circumstances in Hampton are all but identical to the case before us, and that case‘s holding is persuasive, we must be bound by the Texas Supreme Court‘s holdings. Titus relies on the Kerrville holding that non-use of a possible treatment method (supplying a patient‘s medication via injection, rather than merely physically providing the medication to the patient) did not constitute use as contemplated by the waiver statute. “The gravamen of their complaint is that [the hospital‘s] non-use of an injectionable drug was the cause of their daughter‘s death. This failure to use a form of drug is just as much a non-use of a drug as was the hospital‘s failure to give its patient her medicine in Kassen.”4 Id. at 585. Pointing out that almost every instance of treatment by doctors in state medical facilities involves some form of tangible property, the court said there could not be a waiver of immunity in each such occurrence, lest a patient could “always complain that a different form of treatment than the one employed would have been more effective and still claim waiver under the Act. If such a complaint were enough to constitute the use of tangible personal property under the Act, the doctrine of sovereign immunity would be rendered a nullity.” Id. at 586. Unlike Kerrville, there can be no medical decision in our contemplation which would involve not properly positioning the safety rails on Roach‘s bed.
Situations involving failure to give medication or give medication in a particular format are distinguishable from situations where equipment (which would qualify as tangible property) is used by a state actor hospital, but not used according to the equipment‘s contemplated purposes. Roach‘s allegation that she was placed in a hospital bed that was equipped with safety rails which were not engaged or used qualifies as a use of tangible property by the state entity. If the hospital did not, as Roach alleges, raise or engage the bed‘s attached safety rails, that “non-raising” does not equate to “non-use” as contemplated by the Texas Supreme Court in Kerrville. Such a literal analysis of the situation does not comport with the overall
For example, if a hospital provided a patient with a bed lacking bed rails and the lack of this protective equipment led to the patient‘s injury, the Act‘s waiver provisions would be implicated.
Id. at 585 (citing Lowe, 540 S.W.2d at 300). It is just as reasonable that if a hospital supplies a patient with a bed equipped with safety rails, but does not activate or engage those rails, coupled with the fact that the failure to utilize the rails is the proximate cause of the patient‘s injury, the statute‘s waiver provisions would be implicated. Referring to Overton, the earlier hospital bed case where the bed did not have rails, the Texas Supreme Court pointed out, “[t]he hospital did not merely allow the patient access to the bed; it actually put the patient in the bed as part of his treatment.” San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246 (Tex.2004).5 Roach alleged in her petition that she was placed in the hospital‘s bed immediately after being brought from the recovery room after surgery and the rails were not raised. The rails were part of the bed; failing to properly employ the bed qualifies as the hospital‘s use of its tangible property. Roach‘s allegations were sufficient to implicate the statute‘s waiver of immunity provision.6
We affirm the trial court‘s denial of Titus’ claim of governmental immunity solely on the basis that the use of the hospital bed (with its safety rails) was a use of tangible personal property as contemplated in the statute. We reverse the determination that there has been no waiver of governmental immunity as to Roach‘s claim of negligence pertaining to the hospital‘s failure to notify Roach‘s family that she had been returned to her room after surgery and remand to the trial court for further proceedings in accord with this opinion.
Notes
Id. at 264 (citing Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex.2005) (claim that knife used in college drama production inherently unsafe without an adequate stab pad did not mean integral safety component lacking for purposes of governmental immunity waiver)). Here, even if the bed‘s rails were characterized as integral safety components, they were neither lacking nor inadequate. They simply were not used despite being part of the bed, which was used in Roach‘s post-surgery treatment.The integral safety component must be entirely lacking, rather than merely inadequate.... Stated conversely, supplying safety components that are inadequate, but not entirely lacking, does not constitute a use of personal property so as to waive immunity.